Looks like we won’t have the Ukraine-Gate whistleblower to kick around in the impeachment follies after all. Despite his touching off the latest scandal for Democrats’ use in their years-long effort to remove Donald Trump from the presidency, attorneys representing the career CIA analyst have broken off negotiations for his appearance in both the House and the Senate. That may not end up being the last word if this goes to a trial, however:
A source familiar with the discussions told the Washington Examiner that talks halted over potential testimony from the whistleblower and there is no discussion of testimony from a second whistleblower, who supported the first’s claims.
“There is no indication that either of the original whistleblowers will be called to testify or appear before the Senate or House Intelligence committees. There is no further discussion ongoing between the legal team and the committees,” the person said.
The whistleblower is a career CIA officer with expertise in Ukraine policy who served on the White House National Security Council during the Obama administration, when 2020 Democratic presidential candidate Joe Biden was “point man” for Ukraine, and during the early months of the Trump administration.
Schiff spokesman Patrick Boland did not respond to requests for comment. “I’m not aware of any discussions” on having the whistleblower testify, said a House Republican source familiar with the inquiry.
The Washington Examiner’s Steven Nelson points out that this is quite a turnaround from six weeks ago. At that time, Adam Schiff declared that the whistleblower was only awaiting “guidance from the Acting DNI” to testify.
We have been informed by the whistleblower’s counsel that their client would like to speak to our committee and has requested guidance from the Acting DNI as to how to do so.
We‘re in touch with counsel and look forward to the whistleblower’s testimony as soon as this week.
— Adam Schiff (@RepAdamSchiff) September 24, 2019
Ever since then, however, questions have arisen about contacts between Schiff and/or his staff and the whistleblower prior to his complaint, as well as the whistleblower’s connections to potential Donald Trump challengers in the 2020 election. It didn’t help matters to have Schiff lie about the former, and rumors about connections to Joe Biden keep coming up.
Some outlets, including our sister site RedState, have published the name of the suspected whistleblower. I’m not sure we’ve seen enough conclusive evidence to settle on the person being mentioned, although he does seem to fit all of the parameters known about the whistleblower. The whistleblower’s attorneys released a statement today warning that media outlets and reporters would be held “personally liable” for any harm that befalls their client after being outed:
Attorneys for Ukraine call whistleblower new statement on speculation about the intelligence community employee’s identity. pic.twitter.com/UdsmSQ226P
— Kelly O'Donnell (@KellyO) November 1, 2019
Ahem. Zaid and Bakaj are well-known attorneys specializing in nat-sec litigation, but perhaps they’re not quite as expert in First Amendment casework. Media outlets and reporters are not under any obligation to follow Congress’ rules on naming persons involved in scandals, nor does their reporting on legitimate news open them to “liability” for the actions of others. The provenance of a complaint that starts an impeachment process is certainly within the “legitimate news” realm, as are questions about what his motivations might be. In fact, that’s not just a legitimate news question, it’s also a legitimate fact-finding question, to which we’ll return in a minute.
If these outlets name the wrong person, that certainly creates liability, as the news outlets that identified the wrong two men as the Boston Marathon bombing suspects found out rather quickly. (And in the Navy shipyard shooting, and in Aurora, and in the Atlanta Olympics bombing, etc etc etc…) Bakaj and Zaid are spot on in that regard, but truth in reporting is a pretty solid defense against claims such as this. Government workers don’t have special claims to protection against investigative reporting or for anonymity in reporting on news stories, whether they blow whistles or not.
This might end up not being much of a choice for Bakaj’s client anyway. If Democrats vote to impeach Trump, a trial must begin in the Senate, where Republicans will control all of the processes that Schiff currently controls. It’s all but certain that Senate Republicans will take a very keen interest in just how this all started, and might start issuing subpoenas to House attorneys to testify as to their contacts with this whistleblower. They could also subpoena the whistleblower himself, although certain safeguards would still apply, but it might be sufficient to force transparency on House committee staffers in establishing who participated in this whistleblowing, at what time, and for what purpose.
At any rate, the fact that Democrats no longer want the whistleblower to participate in this process is not going to deter Republicans from pursuing this issue. In fact, it might just raise a big red flag for Lindsey Graham when — or if — he gets the case.